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DEFINING THE PROBLEM AND SCOPE OF 

OVER-CRIMINALIZATION AND 

OVER-FEDERALIZATION 

HEARING 

BEFORE THE

OVER-CRIMINALIZATION TASK FORCE OF 2013 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JUNE 14, 2013 

Serial No. 113–44 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

OVER-CRIMINALIZATION TASK FORCE OF 2013 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

SPENCER BACHUS, Alabama 

RAU ́ L LABRADOR, Idaho 

GEORGE HOLDING, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JERROLD NADLER, New York 

STEVE COHEN, Tennessee 

KAREN BASS, California 

HAKEEM JEFFRIES, New York 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 
(III) 

C O N T E N T S 

JUNE 14, 2013 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Over-Criminalization Task 

Force of 2013 ........................................................................................................ 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Over-Criminalization Task 

Force of 2013 ........................................................................................................ 2 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

WITNESSES 

The Honorable George J. Terwilliger, III, Morgan, Lewis & Bockius LLP 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

William N. Shepherd, American Bar Association (ABA) 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

John G. Malcolm, The Heritage Foundation 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

Steven D. Benjamin, National Association of Criminal Defense Lawyers 

Oral Testimony ..................................................................................................... 47 

Prepared Statement ............................................................................................. 49 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 5 

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Member, Over-Criminalization Task 

Force of 2013 ........................................................................................................ 76 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Booklet entitled USA vs YOU, the Flood of Criminal Laws Threatening Your Liberty, by The Heritage Foundation, submitted by John G. Malcolm, The Heritage 

Foundation. 

(1) 

DEFINING THE PROBLEM AND SCOPE OF 

OVER-CRIMINALIZATION AND 

OVER-FEDERALIZATION 

FRIDAY, JUNE 14, 2013 

HOUSE OF REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE OF 2013 

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 9 a.m., in room 2237, 

Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Task Force) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Bachus, Labrador, Holding, Scott, Conyers, Cohen, Bass, Jeffries, and Jackson 

Lee. 

Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 

Church, Clerk; and (Minority) Ron LeGrand, Counsel. 

Mr. SENSENBRENNER. I would like to welcome everyone to the 

first hearing of the Judiciary Committee’s Over-Criminalization 

Task Force. This is the first in a series of hearings the Task Force 

will hold on the growing problem of over-criminalization and overfederalization. The Crime Subcommittee had hearings in both the 

111th and 112th Congresses to resurrect important policy discussions that have been dormant for over 2 decades about the breadth 

and scope of the Federal criminal law. Our work continues today. 

The objective of today’s hearing is to define the scope of the overcriminalization problem. That in and of itself is a complex and 

challenging task. At present, the United States Code contains approximately 4,500 Federal crimes, as well as innumerable regulations and rules, many of which carry severe fines and jail time for 

violations, and there is no indication that Congress is slowing 

down. 

Indeed, over the past three decades, Congress has created an average of 500 new crimes per decade, and the Administrative Office 

of the U.S. Courts estimate that over 80,000 defendants are sentenced in Federal courts annually. Many of the crimes on the books 

are antiquated or redundant, some are poorly drafted, and some 

have not been used in the last 30 years. Moreover, many of the regulatory crimes in the code lack any mens rea, the attempt to commit a crime. That means that an American citizen may not only be 
2 

unaware that he is committing a crime, but he may be held strictly 

liable for his conduct. 

In the 109th Congress, 203 bills were proposed containing some 

446 nonviolent crimes. It is hard to imagine that there still remain 

nearly 500 types of legitimate criminal conduct that Congress has 

failed to properly prohibit. Accordingly, the Task Force will examine the types of conduct Congress has criminalized to assess several important issues. Should the conduct be criminal? If so, to 

what extent should it be punished? Is the offense properly written 

to distinguish criminal from lawful conduct? 

The need for reform becomes particularly apparent when you 

read the stories of well-meaning Americans whose lives have been 

turned upside down when they run afoul of an obscure Federal 

statute, rule or regulation. In Virginia, a little girl saved a woodpecker from the family cat and was fined $535 because under the 

Federal Migratory Bird Act it is a crime to take or transport a 

woodpecker. In Texas, a 66-year-old retiree had his home raided by 

a SWAT team and spent almost 2 years in prison because he didn’t 

have the proper paperwork for some of his prized orchids, all of 

which were legally imported. The judge who sentenced him to prison said sometimes life hands us lemons. But the source of the sourness was the government. This Task Force is an overdue effort to 

address this problem. 

We will focus on reforms to streamline our criminal code, reviewing Federal laws in Title 18 to modernize our criminal code and addressing codification of crimes outside of Title 18 that have not 

gone through the Judiciary Committee. We will examine the extent 

of the problem and make recommendations to the full Committee 

on how to effectively address these issues. 

I look forward to working with my Task Force colleagues on this 

bipartisan effort. And it is now my pleasure to recognize for his 

opening statement the Ranking Member of the Task Force, the 

gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Today’s hearing about over-criminalization of conduct and overfederalization of criminal law comes after a series of conversations 

and hearings that have taken place over the last two Congresses. 

Members of the Crime Subcommittee have met with a coalition of 

organizations, some of whose leaders are with us today. 

These and other organizations have come to Congress to seek 

consideration and review of the practice and process of enacting 

Federal criminal law, and they have come out of a concern for what 

they and many others view as an explosive rate of growth of the 

Federal criminal code. They also have questions about the wisdom 

of continued expansion of the criminal code without first taking 

time to consider and review the process by which crime legislation 

is enacted. 

Their concern is valid. The U.S. Criminal Code has dramatically 

increased in size and scope since it was last recodified about 50 

years ago. There are an estimated 4,500 Federal crimes in the code 

today, and according to a study by the Federalist Society, the number of Federal offenses increased by about 30 percent between 1980 

and 2004. We are averaging almost one new crime a week over the 

past few decades. 
3 

In the top 4,500 provisions of the Federal criminal code, there 

are an estimated 300,000 or more Federal regulations that can be 

enforced with criminal penalties. Far too many of these criminal offenses and regulations lack the adequate criminal intent or mens 

rea requirement to protect the innocent. Some offenses have no intent requirement at all. 

A historic and groundbreaking joint study and report released by 

the National Association of Criminal Defense Lawyers and the 

2010 Heritage Foundation report ‘‘Without Intent’’ took a look at 

the Federal legislative process for non violent criminal offenses introduced in the 109th Congress. That is 2005, 2006. 

The study revealed that offenses with inadequate criminal intent 

requirements were present throughout all stages of the legislative 

process. Over 57 percent of the offenses introduced and 64 percent 

of those actually enacted into law contained inadequate criminal 

intent requirements, putting the innocent at risk of criminal prosecution. The study also commented on poor legislative craftsmanship, citing legislation as being vague, far-reaching, and having inadequate mens rea requirements. 

The consequence of this will lead to unjust prosecutions, convictions, and punishments, so I look forward to hearing today’s witnesses’ suggestions regarding methods of improving legislative 

draftsmanship. 

In requirements primarily a matter of State and local law over 

the past 40 years, Congress has increasingly federalized crimes already covered by State law. Not surprising, this dual Federal/State 

prosecution authority not only creates tensions between the government entities, but also places an individual in an extremely negative and precarious position of being forced with prosecution either 

at the Federal or State level. The bottom line is that an individual’s fate has often hinged on not the actual offense, but the authority to prosecute them. It will be the challenge of this Task 

Force to explore and resolve the impact of over-federalization in the 

area of other crimes, including but not limited to such crimes as 

carjacking and drug offenses. 

An unforeseen consequence of over-criminalization and over-federalization has been over-incarceration, with the explosion in 

growth in the U.S. prison population. The number of Federal prisoners in 1980 was 25,000, but it is over 200,000 today, and it is 

this number, when added to those incarcerated in state and local 

jails and prisons, has resulted in the United States now being the 

largest incarcerator in terms of both the total number incarcerated 

and the rate of incarceration. 

In the last 30 years, we have gone from an average daily jail and 

prison incarceration level of about 500,000 to over 2 million, with 

an average incarceration rate of over 750 per 100,000 residents, a 

rate about seven times the international average. China, by contrast, with three times as many people, has a total incarceration 

level of 1.5 million with a rate of about 117 per 100,000. And we 

look to minorities, it is even worse. The average lockup rate for African Americans is around 2,200; 10 States the rate is almost 

4,000. 

That is particularly egregious because of a report from the Pew 

Center on the States. They did research and found that any incar-
4 

ceration rate over 350 per 100,000 gives diminishing returns, and 

at 500 per 100,000 actually becomes counterproductive, meaning 

that it actually generates more crime than it stops by messing up 

so many families, wasting so much money on prisons, having so 

many people in the area with criminal records. 

The work of this Task Force begins today, and it will involve 

identifying improvements in the Federal criminal code that we can 

all agree on. This work is extremely important and must be done 

correctly and effectively. It will require a major commitment of 

time and attention and must involve participants and input not 

only from Members of both parties of the House and Senate, but 

also from a diverse gathering of interested parties, including organizations in the over-criminalization working groups and others. 

We will need the help of criminal law researchers, Federal law 

enforcement community, representatives of the judiciary, including 

the U.S. Sentencing Commission, and the Administrative Offices of 

the Courts, and other interested organizations and professionals. 

So I look forward to working with my colleagues on the Task Force 

and look forward to our witnesses today, particularly attorney Benjamin, who is one of my constituents. 

Thank you very much. 

Mr. SENSENBRENNER. Thank you. 

The gentleman’s time has expired. 

The Chair recognizes the Chair of the full Committee, gentleman 

from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Chairman Sensenbrenner. I am very 

happy to be here today at the introductory hearing for this bipartisan Over-Criminalization Task Force. Today’s hearing will afford 

members of the Task Force the opportunity to hear from a distinguished panel of outside experts who have been studying this issue 

very closely for a number of years. 

The number of Federal crimes has exploded in recent decades, 

bringing the number to approximately 4,500. According to a study 

by the Federalist Society, the number of Federal criminal offenses 

grew by 30 percent between 1980 and 2004. Congress added 452 

new Federal criminal offenses between just 2000 and 2007 alone, 

which averages 56.5 new crimes per year. This pace is simply 

unsustainable. 

Perhaps more concerning than the sheer number of offenses is 

how Congress has written many of these new crimes. The recent 

growth of the Federal code in all areas of life has brought with it 

an ever-increasing labyrinth of Federal regulations, many of which 

also impose criminal penalties without a showing of mens rea or 

criminal intent. 

A troubling example of this is what happened to three-time Indy 

500 winner Bobby Unser. When snowmobiling near his home, an 

unexpected snowstorm forced Unser and a friend to seek refuge in 

a barn. While trying to escape the storm, they unwittingly went 

into a national forest wilderness area. They spent 2 days and 

nights in sub-zero weather eating snow to slake their thirst before 

being rescued. 

Following his safe return home, Unser then contacted the Forest 

Service to help retrieve his snowmobile. For his trouble, he was 

later convicted of unlawful operation of a snowmobile within a na-
5 

tional forest wilderness area, which carried a maximum penalty of 

6 months in prison and a $5,000 fine. I am confident Congress 

never intended to subject someone in Unser’s situation to criminal 

liability. However, stories like this have become all too typical. 

I look forward to hearing from our witnesses today and in the 

coming months about the scope of over-criminalization and overfederalization and what steps this Task Force and the Judiciary 

Committee can take to address the issue. Concern for this issue is 

bipartisan and requires bipartisan perspectives. I commend all of 

my colleagues here today for your work on the Task Force, and I 

yield back the balance of my time. 

Mr. SENSENBRENNER. The gentleman from Michigan, Mr. Conyers, the Ranking Member of the full Committee, is recognized for 

his opening statement. 

Mr. CONYERS. Mr. Chairman, everybody has said already what 

I was going to say again, so I will submit my statement for the 

record and salute the Task Force, congratulate the witnesses for 

joining us, and yield back the balance of my time. 

Mr. SENSENBRENNER. Without objection, the gentleman from 

Michigan’s statement will be included in the report. And without 

objections, all Members’ opening statements will be included in the 

record at this point. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Unfortunately, Congress has increasingly resorted to criminalizing actions as the 

solution to various problems over the past several decades. 

There are now about 4,500 federal criminal laws. And, there are about 300,000 

federal regulations that impose federal criminal penalties, many of which lack any 

mens rea requirement. 

The breadth and scope of these laws is astounding and definitely in need of repair. 

So as the Task Force undertakes its analysis of this problem of over-criminalization, there are several issues it should consider. 

To begin with, the Task Force should understand the real consequences of exponentially increasing the number of criminal laws and regulations. 

By inadvertently creating a patchwork of confusing, outdated, and duplicative 

laws, Congress has also created the related problems of overcriminalization and 

overincarceration. 

For example: 

• An estimated 65 million Americans have been tarnished with a criminal 

record, according to one of our witnesses today. 

• The number of individuals currently incarcerated in our Nation exceeds 2.3 

million, which is roughly 1 out of every 99 adults. 

• And, the United States now leads the world in the rate of incarceration. Our 

incarceration rate is 7 times the international average. Indeed, some innercity neighborhoods have an incarceration rate that is 40 times the international average. 

Another focus of the Task Force should be on identifying creative and effective 

solutions, such as comprehensive, evidence-based prevention and intervention programs for children and families at risk of coming into the criminal justice system. 

Such programs have been proven to not only to brake the cradle-to-prison cycle, 

but also greatly reduces criminal justice and social welfare costs to taxpayers. 
6 

For instance, the Youth PROMISE Act, authored by my colleague Rep. Robert C. 

‘‘Bobby’’ Scott, is an excellent step in that direction. 

This legislation would mobilize community leaders ranging from law enforcement 

officials to educators to health and mental health agencies to social service providers. 

Another solution would be to revise our criminal laws to limit the severity of punishment for low-level offenses such as possession or use of drugs and to consider alternatives to mandatory minimums. 

Research has shown that strong community supervision programs for lower-risk, 

non-violent offenders can cut recidivism by as much as 30 percent. 

Mandatory sentences, long sentences for non-violent first offenses, and laws mandating increased penalties for repeat offenders lead to overincarceration. 

One of the most pernicious aspects of mandatory minimums is that it deprives 

judges, the entities who have the greatest knowledge of the facts and law, of discretion and the ability to assess a particular person’s culpability. 

Finally, the Task Force should ensure that all of our criminal laws and penalties, 

be it statutory or regulatory, comply with the U.S. Constitution’s due process mandate. 

When good people are accused of violating laws that are vague or lack adequate 

mens rea, however, fundamental constitutional principles of fairness and due process are undermined. 

I am particularly concerned that some criminal laws impose strict liability standards and that some regulations lack any mens rea requirements. 

Accordingly, I look very much forward to hearing the views of our witnesses 

today. 

Mr. SENSENBRENNER. The Chair will now introduce the four witnesses. 

The first witness is the Honorable George Terwilliger, III. He is 

a partner in Morgan, Lewis’ litigation practice and co-chair of the 

White Collar Litigation and Government Investigations Practice. In 

this capacity, Mr. Terwilliger provides counsel in litigation, internal investigations, and enforcement proceedings. He has served as 

a U.S. presidential appointee in two Administrations. He was appointed U.S. attorney by President Ronald Reagan and served as 

deputy attorney general and acting attorney general in the George 

H.W. Bush administration. Most recently, Mr. Terwilliger was a 

partner in the white-collar practice of another international law 

firm. He received his bachelor’s degree from Seton Hall University 

and his law degree from the Antioch School of Law. 

John Malcolm is the Rule of Law Programs policy director and 

the Ed Gilbertson and Sherry Lindberg senior legal fellow in the 

Edwin Meese III Center for Judicial Studies of the Heritage Foundation. In this capacity, he writes and speaks on a variety of lawrelated topics. Previously, he served as an assistant U.S. attorney 

in Atlanta, then as an associate independent counsel in Washington, D.C. 

Mr. Malcolm then went on to serve as a deputy assistant attorney general in the Criminal Division of the Department of Justice. 

He was an executive vice president and director of the worldwide 

anti-piracy operations for the Motion Picture Association of America and went on to serve on the faculty of Pepperdine School of Law 

as a distinguished practitioner in residence. Mr. Malcolm was most 

recently the general counsel at the U.S. Commission on International Religious Freedom. He is a graduate of Columbia and 

Harvard Law School. 
7 

William N. Shepherd is testifying in his capacity as a member 

of the American Bar Association. He is a partner at Holland & 

Knight. In this capacity, he represents individuals and corporations 

in the State and Federal Government investigations and grand jury 

investigations. Previously, he served as a prosecutor in Miami and 

then as the statewide prosecutor of Florida. He is chair of the 

American Bar Association’s Criminal Justice Section, a member of 

its Global Anti-Corruption Task Force and a former division director of its White Collar Crime Division. He received both his undergraduate and law degrees from Georgetown. 

Steven Benjamin is president of the National Association of 

Criminal Defense Lawyers, which is a professional bar association 

founded in 1958. Its members include private criminal defense lawyers, public defenders, Active Duty U.S. military defense counsel, 

law professors and judges committed to preserving fairness within 

America’s criminal justice system. He is in private practice at the 

Virginia firm of Benjamin—and is it DesPortes or DesPort? 

Mr. BENJAMIN. DesPortes. 

Mr. SENSENBRENNER. DesPortes. Okay. He served as special 

counsel to the Virginia Senate Courts of Justice, or Judiciary Committee, and is a member of the Virginia Board of Forensic Science 

and the Virginia Indigent Defense Commission. He previously 

served as president of the Virginia Association of Criminal Defense 

Lawyers. 

So we will now proceed under the 5-minute rule. We are facing 

a very long series of votes this morning and we don’t know when 

it will start, so I will ask each of you to try and wrap it up in 

5minutes. And you all know about the green, yellow and red lights. 

Without objection, all of your full statements will be included in the 

record at the point with your verbal testimony. 

And, Mr. Terwilliger, you are first. 

TESTIMONY OF THE HONORABLE GEORGE J. TERWILLIGER, 

III, MORGAN, LEWIS & BOCKIUS LLP 

Mr. TERWILLIGER. Thank you, Mr. Chairman and Ranking Member Scott, Chairman Goodlatte and Ranking Member Mr. Conyers, 

and members of the Task Force, for having me here today and inviting me to join with you in discussing the subject of over-criminalization and over-federalization. 

Mr. SENSENBRENNER. Is your mike on, Mr. Terwilliger? 

Mr. TERWILLIGER. Yes, sir. 

Mr. SENSENBRENNER. Okay. 

Mr. TERWILLIGER. I believe that the work of this Task Force has 

taken on even greater importance than it had when the Task Force 

was originally initiated. Recent events have vividly brought home 

to many Americans an understanding that their most fundamental 

liberties are at risk due to the overpowering and overburdening 

reach of the Federal Government establishment. 

I am not referring to the recently reported NSA counterterrorism 

programs where I recognize the unfortunate need for these programs due to the significant terrorist threat our people face at 

home and abroad. Rather, it is something far more insidious and 

uncontrollable than NSA programs that impinge on Americans’ liberties today. The recent events concerning the reprehensible and 
8 

possibly thuggish conduct of the IRS is but one stark example of 

a Federal Government that reaches far too deeply and intrusively 

into the daily lives and choices of ordinary Americans. 

We have lost sight of the fact, in my view, that the purpose of 

our Constitution is not so much to establish a government as to ensure that the government that we must have is never permitted to 

take any more of our personal liberties from us than is absolutely 

necessary. We are on a path that is taking us from a system of ordered liberty through the rule of law to one of liberty that is only 

as extensive as government fiats allow. 

And what freedoms are in peril? They range from the most fundamental of personal choices to others that standing alone may 

mean less, but considered collectively illustrate that the certain 

surrendering of personal liberty continues. 

Consider: The freedom of each individual to retain the fruits of 

his or her labor and decide how, when, and for what to use those 

funds. Instead, we have a system of taxation that takes more and 

more from a few to distribute to many. That should not be, at least 

on the present scale, a choice that is made by government. 

Liberty is further threatened because one of the results of massive and often wasted runaway Federal spending is that the government is starved for the funds to do the things that are its core 

functions and responsibilities, most especially those related to national defense and public safety, but also including those needed to 

foster expansions of economic freedom that produces prosperity. 

The Federal leviathan even reaches into our daily life so far as 

to dictate to us when we awake in the morning, what kind of light 

bulbs may illuminate our bathroom, and how much water can flow 

through our showerhead. This would be humorous if not such a sad 

commentary on what we have allowed to evolve. 

Over-criminalization is part of this larger picture. Thus, efforts 

by Congress to get its arms around these issues, such as through 

this Task Force, are a most significant step forward. My prepared 

statement traces the origins and developments of the use of Federal criminal law and addresses how we have strayed from its fundamental purpose. But I believe the fundamental takeaway is this: 

We have lost sight of the proper use of Federal criminal law as a 

carefully applied tool to protect the means and instrumentalities of 

commerce, a goal in harmony with the principles of federalism and 

the Framer’s intent. 

I would like to leave you today with one simple idea that I think 

could be a significant step forward: We could assure ourselves that 

no person or business is ever convicted of a criminal offense unless 

a jury has determined that he, she, or it acted with criminal intent, 

and I believe this could be accomplished by writing an overriding 

provision of law that requires as an element of any offense where 

a showing of intent is not expressly required that it be proven beyond a reasonable doubt that the defendant acted with a bad purpose; that is, with the intent to disobey or disregard a requirement 

of law. This could eliminate any question as to strict criminal liability offenses being actionable and would reintroduce to Federal 

criminal law the fundamental and venerated principle that a criminal offense must include proof of intent to do a bad act. 
9 

Again, I thank the Chair and the Ranking Member of the Task 

Force for taking on this important work and will be pleased to answer any questions or to discuss these issues with Members or staff 

anytime. 

[The prepared statement of Mr. Terwilliger follows:] 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 

Mr. SENSENBRENNER. Thank you, Mr. Terwilliger. 

Mr. Shepherd. 

TESTIMONY OF WILLIAM N. SHEPHERD, 

AMERICAN BAR ASSOCIATION (ABA) 

Mr. SHEPHERD. Thank you very much, sir. Mr. Chairman, Ranking Member, it is a pleasure to be here on behalf of the American 

Bar Association. I serve as chair of the American Bar Association’s 

20,000-member Criminal Justice Section, a group that is made up 

of both prosecutors and defense lawyers, judges and academics, 

who, like you in this bipartisan setting, often find themselves—— 

Mr. SENSENBRENNER. Is the light on? 

Mr. SHEPHERD. I believe it is on. Oh, there we go. Thank you 

very much, sir. 

Who find ourselves, as you do, addressing these issues in a bipartisan fashion. We, from our diverse professional backgrounds, come 

to the same conclusions that you do: There are too many criminal 

laws, the enforcement of many of these laws becomes confused, and 

because of the overburdening number of laws and the strain that 

puts on our system, priorities, which we might all agree on, 

oftentime get sidetracked because of fiscal realities. 

My own practice background is that I spent 12 years as a State 

court prosecutor trying cases in courthouses in Miami and throughout the State of Florida. For the last 4 years of that service I had 

the opportunity to serve as Florida’s statewide prosecutor and at 

which point I spent a fair amount of time in our legislative processes in our State legislatures. One of the issues that became apparent to us as a security threat was the growing problem of gangs 

in the State of Florida. We worked with legislative leaders to address some of the issues and craft new laws that would help give 

law enforcement tools they might better use to protect the citizens 

of our State. 

As that debate went on, one of the main issues became, well, Mr. 

Shepherd, if we pass some of these, it will have a significant prison 

bed impact. Well, yes, that was the goal, to have a prison bed impact as it related to serious gang violence and gang offenders. But, 

Mr. Shepherd, you don’t understand, we have a large influx of new 

inmates who are traffic offenders, not trafficking, traffic, driving offenses. And I am not trying to minimize the importance of those, 

but I think it illustrated the point that as new penalties get added 

on to new statutes, perhaps without thinking about the long-term 

impact, some of those decisions have an impact on what we would 

prioritize. 

If we are going to build prisons, certainly we would build them 

to protect our communities from violent gang offenders, and if our 

own fiscal realities have been dictated by something else, I think 

that is a prime example, on a broader spectrum, of some of the 

same issues that States are facing as you are trying to discuss 

these issues today. 

The American Bar Association has long been in favor of policies 

that would bring sensible reforms to some of the legislative issues, 

one that I will talk about as it relates to an individual case that 

I was involved in recently. In drafting an amicus brief on behalf 

of my colleague here at the National Association of Criminal De-
22 

fense Lawyers, involved a commercial fisherman in Tampa who 

was prosecuted under a crime drafted by this Congress, but my 

guess would be that Congress had no idea that a post-Enron antidocument-shredding statute would be used to convict a man of destroying three red grouper. 

A 4-day Federal court trial resulted in his conviction for the destruction of this evidence that he had been sent by the Fish and 

Game Commission to take to the port. When they came back to the 

port 3 days later to reinspect the fish, the original count of 72 reflected there were now only 69 fish on the port. That case is now 

before the Court of Appeals in the 11th Circuit. 

And I am not here to argue the case, but what I am here to say 

is that the laws that you draft get applied by real people and impact real lives in ways that you may have no idea would be the ultimate goal and the ultimate use as it impacts those individual people. If laws are important enough such that individual men should 

spend time in Federal prison, those laws should be drafted by you, 

the people in this Congress, instead of delegated to career people 

who work in agencies, who are not elected officials like yourself, 

people who have a narrow focus and perhaps don’t have a broader 

perspective that you carry with you when you come from your constituents. 

So, in concluding, I would just say that if it is important enough 

to send a man to Federal prison, it is important enough for this 

Congress to vote on it, and I think that that is an overarching issue 

that you can all address in this, and I compliment you for your 

work in this area. Thank you. 

[The prepared statement of Mr. Shepherd follows:] 
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Mr. SENSENBRENNER. Thank you very much. 

Mr. Malcolm. 

TESTIMONY OF JOHN G. MALCOLM, 

THE HERITAGE FOUNDATION 

Mr. MALCOLM. Mr. Chairman, Members of Congress, thank you 

for providing me the opportunity to speak to you about over-criminalization, a term used to describe the overuse and misuse of 

criminal law in today’s society. In my capacity as the Rule of Law 

Programs policy director at the Heritage Foundation, I host regular 

meetings of an Overcriminalization Working Group consisting of 

several organizations from across the political spectrum. These organizations don’t agree on very many issues but they do agree on 

this: Over-criminalization is a serious and growing problem and 

needs to be remedied. 

I have also spent much of my career as a prosecutor and a criminal defense attorney, so I speak to you as someone as experience 

on both sides of the courtroom. For most of our Nation’s history, 

all of the crimes, and there weren’t very many of them, were 

malum in se offenses; that is, they prohibited conduct that was 

widely recognized as morally blameworthy. Today, however, buried 

within the 51 titles of the United States Code and the far more voluminous Code of Federal Regulations, there are approximately 

4,500 criminal statutes and another 300,000 or more criminal regulations, and scores more are created every year. 

Many of these laws, unfortunately, contribute to the over-criminalization problem. Many Federal criminal laws duplicate other 

existing Federal and State criminal laws. Some Federal laws increase the penalties for certain crimes without any demonstrated 

need, adding to the taxpayer’s burden. Most of these new laws, 

usually in the form of regulations, are malum prohibitum offenses, 

which are crimes only because Congress or some regulator has said 

that they are, not because they are inherently blameworthy. Unlike 

malum in se offenses which prohibit morally indefensible conduct, 

regulations actually allow conduct, but they circumscribe when, 

where, how, how often, and by whom certain conduct can be done, 

often in ways that are very hard for the nonexperts to understand. 

When criminal penalties are attached to violations of obscure 

regulations, over-criminalization problems often ensue. But there is 

an even bigger problem. Today, many criminal laws lack an adequate or any mens rea requirement, meaning that a prosecutor 

doesn’t even have to prove that the accused knew that he was violating the law in order to convict him. Many of these so-called offenses are so arcane or incomprehensible that a reasonable person 

wouldn’t have any idea that what he was doing was a crime. 

And there are other problems, too. If somebody wanted to find 

out whether his proposed conduct was illegal, there is no convenient, easily accessible place that he could go to in order to find a 

complete list of Federal crimes. Moreover, the criminal code today 

is so vast and complex that the judges and lawyers have a lot of 

trouble discerning what is legal and what is illegal. What hope do 

ordinary citizens have? 

It is inevitable that many morally blameless individuals will end 

up committing acts that turn out to be crimes and some of them 
30 

will end up in prison. The Heritage Foundation just came out with 

a booklet entitled ‘‘USA vs You’’ that provides the stories of just a 

few unfortunate people who got cauht up in the web of over-criminalization, and there are more such stories on our Web site. When 

we divorce legal guilt from moral blame-worthiness and place excessive reliance on criminal law to address social problems rather 

than the administrative or civil justice systems, problems occur. 

When morally blameless people unwittingly commit acts that turn 

out to be crimes and are prosecuted for those offenses, the public’s 

respect for the fairness and integrity of our criminal justice system 

is diminished, which is something that should concern everyone. 

There are a number of proposals that I would encourage you to 

consider, such as passing a default mens rea provision for crimes 

in which no mens rea has been provided and passing a law requiring the government to identify every Federal crime and to post it 

in a manner that is easily accessible to the public at no charge. I 

look forward to future hearings in which these and other proposals 

are discussed in greater detail. And with that, I would be happy 

to answer any questions you might have. 

[The prepared statement of Mr. Malcolm follows:] 
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Mr. SENSENBRENNER. Thank you very much. 

Mr. Benjamin. 

TESTIMONY OF STEVEN D. BENJAMIN, 

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 

Mr. BENJAMIN. Thank you, Mr. Chairman and Ranking Member 

Scott. My name is Steve Benjamin, and I am the president of the 

National Association of Criminal Defense Lawyers, and on behalf 

of NACDL, I commend the House Judiciary Committee for establishing this Over-Criminalization Task Force. 

As a practitioner from the Commonwealth of Virginia, I am personally grateful for the leadership and support of two Members 

from my own congressional delegation, Judiciary Committee Chair 

Goodlatte and Task Force Ranking Member Scott, whose work on 

this critical issue demonstrates that the danger of over-criminalization transcends the traditional ideological divide. 

The problem you confront is not abstract or theoretical. Overcriminalization directly impacts commerce, free enterprise, and innovation. But it is not just a problem with white-collar implications. It encompasses policies and practices that affect every person 

in society, and in my written testimony I have provided numerous 

examples. The fact is we have become addicted to the use of criminal law as a blunt instrument to control social and economic behavior. As a result of over-criminalization, the United States has more 

prisoners than any Nation on Earth, and an estimated 65 million 

Americans are now stigmatized by a criminal conviction and the 

collateral consequences that increasingly result. 

This is not because we are a country of lawbreakers or criminals. 

It is because we use the Federal criminal law for regulatory purposes far beyond the traditional purpose, exercised historically at 

the State level, of deterring and punishing criminal conduct. 

A fundamental question before this Task Force is whether the 

body of Federal crimes should continue to expand, and to answer 

this question requires acknowledgement that where Congress has 

created new crimes, it has done so poorly and without regard for 

whether those new crimes reach conduct that represents genuinely 

bad behavior. Congress often fails to speak clearly and with the 

necessary specificity when legislating criminal offenses, instead enacting overly expansive and poorly defined criminal laws, which 

lack clear requirements of criminal intent. With rare exception, the 

government should not be allowed to punish a person without having to prove he acted with wrongful intent. When the average citizen cannot determine what constitutes unlawful activity in order 

to conform her conduct to the law, that is unfairness in its most 

basic form. 

Further, Congress often delegates its criminal lawmaking authority to executive branch agencies and officials. Regulatory agencies are empowered to unilaterally enact massive criminal provisions with little oversight. As a result, the legislative branch has 

ceded the ability to limit the weighty economic, social, and individual costs of the entire criminal justice system. Poorly written 

laws and weak intent standards have jeopardized the fundamental 

protection of a trial. Unlimited discretion over charging decisions 

combined with mandatory minimum sentences and high sentencing 
48 

guidelines afford prosecutors the power to deter the accused from 

asserting their innocence or attesting new laws before a jury of 

their peers. Rarely will the right to trial justify the risk of a harsh 

sentence if a more favorable plea agreement can be struck. 

Lastly, overly broad laws combined with weak intent requirements allow the criminal law to be improperly used to pursue what 

otherwise would be resolved by civil claims or penalty. Both government and corporate entities resort to the threat of criminal 

sanction to extract civil judgments and forfeitures, eliminate competitors, and improperly control behavior. 

Of special concern to NACDL is the fact that the government’s 

expenditure on Federal law enforcement significantly outpaces its 

spending on the defense function. It is inexcusable that during this 

50th anniversary of Gideon v. Wainwright and the right to counsel 

our indigent defense system is in crisis. That crisis has long afflicted the States, but now budget cuts imperil the Federal indigent 

defense system even as resources for the prosecutorial function flow 

unabated. This imbalance imperils the integrity of the criminal justice system. 

To conclude, we encourage this Task Force to consider the passage of a law that would apply a criminal intent requirement by 

default to laws that lack one. And while the enactment of criminal 

penalties does have a certain allure, the true and tremendous cost 

of doing so means that an assessment of impact should be a condition of enactment. 

The position of NACDL and its purpose in testifying here today 

is clear: The criminal defense lawyers of this Nation value and seek 

a criminal justice policy for America that ensures fairness, due 

process, and the equal protection of the law while providing compassion for the victims and witnesses of crime, the protection of the 

innocent, and the just punishment of the guilty. We are inspired 

by your bipartisan efforts and will support and assist you however 

we can. 

[The prepared statement of Mr. Benjamin follows:] 
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Mr. SENSENBRENNER. I would like to thank each of the witnesses 

for very excellent testimony. I think that all of the members of the 

Task Force agree with all of you and amongst ourselves. This is a 

vast undertaking, and we are operating under somewhat of a time 

limit because the life of task forces are supposed to be 6 months, 

but I would guess that when we get toward the end of the Congress, we are going to ask for a reupping on this, because this is 

not going to get done in 6 months. 

The staff has asked the Congressional Research Service to update the calculation of criminal offenses in the Federal code, which 

was last undertaken in 2008. CRS’ initial response to our request 

was that they lack the manpower and resources to accomplish this 

task. And I think this confirms the point that all of us have been 

making on this issue and demonstrates the breadth of over-criminalization. 

The Task Force staff is going to meet with CRS to figure out how 

to resolve this problem so that at least we can see what we are 

doing and where the problems are so that we can get a dragnet— 

pun intended—of the criminal laws, both in the code, as well as in 

Federal regulations. 

Now, that being said, I would like to ask each of the witnesses 

to give us your priorities, just a phrase, since I have got a limited 

amount of time, on where we ought to start on this, whether it 

should be over-criminalization versus over-federalization, mens rea, section 1811, administrative criminal penalties, and the like. 

And, Mr. Terwilliger, I guess you are first and we will go down 

the panel. 

Mr. TERWILLIGER. Thank you, Mr. Chairman. And recognizing 

the brevity of time, I would be happy to expand on this later, but 

I think there should be two priorities. One, because it is of great 

importance in terms of both the reality and the perception of the 

fundamental fairness of the Federal criminal justice system, is to 

address the intent issue, which each witness here has raised in one 

form or another. Nobody should be convicted of a crime that doesn’t 

have the intent to do something that the law forbids and ought to 

have an opportunity to test whether that intent is there in an adversarial proceeding. 

Mr. SENSENBRENNER. Okay. I have got a limited amount of time, 

so—— 

Mr. TERWILLIGER. The second priority, just one phrase, is on the 

overregulation, because it is stifling economic expansion and development to American corporations. 

Mr. SENSENBRENNER. Okay. Mens rea and overregulation. 

Mr. Shepherd. 

Mr. SHEPHERD. And I would agree that mens rea is number one, 

and number two, overregulation, but the way I would phrase it is 

we have taken Chevron deference where the courts encourage us 

to look at the expert regulators and expanded that to Chevron 

prosecution, and I think that is really the fundamental problem 

here. But mens rea is number one and Chevron prosecution is number two. 

Mr. SENSENBRENNER. Mr. Malcolm. 

Mr. MALCOLM. Yeah, I would certainly default. Mens rea would 

be my top priority. I would echo what Mr. Terwilliger and Mr. 
66 

Shepherd have said. You know, I think that is a good list. You 

know, my general belief is that if it is something that is important 

enough that somebody could go to jail, it is something you ought 

to vote on and not have a regulator implement. 

Mr. SENSENBRENNER. I would agree with that. 

Mr. Benjamin. 

Mr. BENJAMIN. Well, what they said. Mens rea and overbreadth, 

I would add. 

Mr. SENSENBRENNER. Okay. Thank you very much. I yield back 

the balance of my time. 

Gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Let me follow through on that because everybody has talked 

about enforcing regulations with the criminal code. What about 

regulations that involve serious safety and health regulations, violation of those, shouldn’t they be criminal, if you have people who 

are putting workers, for example, in life or death situations? 

Mr. Terwilliger. 

Mr. TERWILLIGER. I suppose there could be a reservation for the 

most egregious kind of conduct of that nature, but in general, Mr. 

Scott, that slippery slope is how we got here, respectfully. And I 

think there are more than adequate civil remedies to actually affect 

the way businesses, for example, behave. 

Something on the notion of intentional conduct that, for example, 

recklessly disregards a known standard of safety that puts a worker in danger, that might be a reservation for a criminal offense, but 

we have gone way beyond that standard at this point, in my view. 

Mr. SCOTT. Well, we are talking about getting rid of all of them 

and some of them we might want to reserve for the reasons you 

have articulated. 

Mr. TERWILLIGER. Yes, sir. 

Mr. SCOTT. If you didn’t know about the regulation, would you 

put your workers in danger of life and safety without a mens rea? 

Mr. TERWILLIGER. Well, that comes back to the intent issue, and 

that is why my formulation would be proof of intent would require 

a showing of a purposeful disobeying or disregarding a law. We 

have the notion of turning a blind eye to the requirements of the 

law, consciously avoiding, knowing what the law requires. If it is 

within someone’s responsibility to know what the law requires and 

they don’t undertake to at least minimally understand what that 

requirement is, that may be enough to support a conviction, assuming those other elements are present. 

Mr. SCOTT. Mr. Malcolm, you want to comment on that? 

Mr. MALCOLM. Yeah, I do, Mr. Scott. If Congress blesses a regulation prohibiting this sort of conduct and notice is provided to affected parties, then it is fine to make it a crime. If the conduct is 

clearly blameworthy and intent is proven, there is nothing wrong 

with making this a crime. However, if that is not the case, there 

is no reason why, even if a harmful result occurs, that such conduct 

cannot be addressed effectively, indeed harshly, by both the civil 

justice system and the administrative system. That way the harm 

can be remedied, general deterrence message can be sent out, and 

you are not branding somebody as criminal. 
67 

Mr. SCOTT. Well, was reckless disregard of life and safety 

enough? 

Mr. MALCOLM. Well, reckless disregard is an intent standard, 

and under the realm of intent standard—— 

Mr. SCOTT. And what about disregard if it is within your responsibility to know and you just didn’t bother to find out what the regulations were? 

Mr. MALCOLM. Well, generally, if it is a highly regulated industry, the government ought to do a better job about letting those industries know what is prohibited, but if it is reckless disregard of 

a known danger, then generally there is nothing wrong with criminalizing that, and Congress has done so and blessed that on a 

number of occasions. 

Mr. SCOTT. Somebody want to comment on when it should be a 

Federal criminal law rather than a State? Most of the Federal 

criminal code just overlaps State laws. I mentioned carjacking. 

Why should that be a Federal law and why should we leave most 

of this stuff to the States? 

Mr. SHEPHERD. I would be glad to address that, sir. My own 

background, as I told you, is as a State prosecutor. Most of the 

cases that we prosecuted, whether they were individual defendants 

or racketeering cases against large groups of violent gangs or large 

white-collar crime cases, could have easily been filed in Federal 

court. I agree, there is a large duplication of that. 

Oftentimes there is a balancing between prosecutors and law enforcement to figure out where do we have more leverage against 

the defendant. Do we have a better sentencing structure for this 

particular crime in State court or Federal court? Are there evidentiary rules in State decisions that support the prosecution in 

this versus the other? So that is how the leverage developed. 

Mr. SCOTT. So, Mr. Benjamin, what does that do to a defendant, 

having to both look at both Federal and State, and why should we 

have the overlap? 

Mr. BENJAMIN. Well, the practical effect is that it makes his legal 

fee unattainable, just nobody can afford private counsel because 

the consequences are so severe and far reaching. That is a very 

real practical effect. But one of the benefits to deferring to the 

States is that that is one of the benefits of federalism, permitting 

each of the 50 States to decide for its own what conduct within that 

State should be criminal and what penalties should attach. That is 

one of reasons for our federalist structure. 

Mr. SCOTT. Thank you. 

Mr. SENSENBRENNER. Gentleman’s time has expired. 

The gentleman from North Carolina, Mr. Holding. 

Mr. HOLDING. Thank you. 

I am sure we all appreciate the distinction and abilities of our 

panelists today, especially my friend Mr. Terwilliger. It is always 

a pleasure. 

Mr. TERWILLIGER. Nice to see you, sir. 

Mr. HOLDING. Yesterday, Director Mueller testified before the 

Committee and talked about the priorities of the FBI, and he noted 

with sequestration and declining budget and budget cuts that you 

have to really sharpen up what your priorities are, and as a criteria you have to prioritize things where Federal law enforcement 
68 

brings something extra to the table, something unique about Federal law enforcement, that is why we should devote FBI resources 

to enforcement. 

So, Mr. Terwilliger, what areas of current Federal law now, 

criminal law, do you think that Federal resources ought to be devoted to, if you had to prioritize? 

Mr. TERWILLIGER. I think clearly the threat of terrorism, both 

now more homegrown perhaps as we saw in Boston and what happened in London, has to remain a top priority for Federal law enforcement. And it is a good example of where what might be, Mr. 

Scott, a street crime, setting off an improvised explosive device, deserves and needs the Federal resources to treat it. 

Beyond that, I think the leveraging of Federal resources, which 

certain Federal laws are important to permitting through the Task 

Force approach to things like street crime and gangs and other organized criminal activity, including drugs, which we don’t talk 

much about anymore, which are—span regions, States, or 

multistate in nature or transnational in nature, I think those 

things are important. 

And then third, only the Federal Government, perhaps with the 

exception of a couple of States, has shown the wherewithal to address what I think is one of the most fundamental duties of the 

Federal Government, and that is to keep our marketplaces free and 

honest, because a dishonest market is not a free one. So keeping 

the means and instrumentalities of commerce free from fraud 

should also be a priority. 

Mr. HOLDING. Mr. Shepherd, you want to chime in on this? 

Mr. SHEPHERD. Well, the only thing I would add to that, sir, is 

that as the FBI has rightly shifted their work into the terrorism 

area and other areas of national importance, State law enforcement 

and local law enforcement has had to step in and up their involvement in cases where they might have been able to get help from 

the local FBI field office and they don’t now because those agents 

are doing other things. So there is a trickle-down effect, but I think 

it is an appropriate use of resources and the way it should be structured. We don’t need to see an FBI agent at every liquor store robbery scene. Sheriff should handle that. 

Mr. HOLDING. Mr. Malcolm. 

Mr. MALCOLM. Yeah, if it is something transnational in nature 

or if the Federal Government has some unique knowledge or expertise, it would an appropriate use of Federal resources. The problem 

is, is that these days it is so easy to use the instrumentality of the 

phones, the mail that take you interstate that essentially all State 

crimes, except for the most local of crimes, become Federal crimes, 

and then you have problems of the spreading of resources and also 

a problem of accountability. The public doesn’t know whether, if 

something isn’t getting done, whether it is the Federal Government’s fault or the State government’s fault, and there is no need 

for that. 

Mr. HOLDING. Mr. Benjamin. 

Mr. BENJAMIN. To terrorism and international criminal activity, 

I would add political corruption and the denial of civil rights. 

Mr. HOLDING. Often there is, you know, something that will raise 

a Federal priority in a particular State is the disparity between 
69 

sentences that you can get in State court versus Federal court, and 

perhaps that is something that we can address in a further question. But I yield back. 

Mr. SENSENBRENNER. Thank you. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you. 

Attorney Benjamin, your testimony noted that almost 68 million 

Americans have a criminal record, and we talked about the direct 

costs of law enforcement presence in courts as well as to businesses 

and the economy. But can you discuss what the criminal record 

means for the average American? How does that impact their quality of life and their ability to contribute to society and the overall 

economy, and how does it affect the system itself with that many 

people walking around with records? 

Mr. BENJAMIN. Thank you, Congressman. The effect of the problem we discussed today is that we have deepened the divide between us. In a country that values equality, we have deepened the 

divide between our people and we have created a caste system populated by third-class citizens who are marked by the stigma of conviction and bear a lifetime of the consequences that flow from their 

conviction, even after they have served their time. 

This is a country that once valued the right of redemption. It 

used to be said that once you had erred, which of course is human, 

and paid your debt to society, you were then free, you were redeemed to pursue life as a free citizen. But that is no longer the 

case. Now, after you have paid your debt, you are marked for the 

rest of your life with consequences such as where you can live, 

where you can work, whether you can pick your children up from 

school. That is not what this country was ever meant to be about. 

Mr. CONYERS. Let me ask Bill Shepherd, one aspect of over-criminalization is over-federalization and how the Federal Government 

frequently intrudes on matters that should be left to the States. Is 

there anything that we can think about doing to minimize this? Do 

you have any examples that we might turn around here this morning? 

Mr. SHEPHERD. Well, I think, sir, that the American Bar Association has been working with Congress for decades on this issue. In 

1998 we came out with a report that involved Attorney General 

Meese on the over-federalization of crimes. We talked about some 

of those statistics earlier this morning. I think there is a natural 

reaction when something bad happens that we want to say we are 

taking action, exactly, and we are here to protect you. 

But part of the way the Federal Government can say we are here 

to protect you is to encourage the local State officials, who already 

have carjacking, as you said, sir, on the books, to further enforce 

their carjacking statute, to give them resources they might need. 

If the FBI lab needs to be helpful in tracing the gun, then we use 

the FBI lab or the ATF, but perhaps we don’t need a new Federal 

statute. 

And I realize it is difficult, in a position where your constituents 

demand action, to say, for example, well, I don’t think we should 

have a Federal carjacking statute. That ends up on a mailer in my 

mailbox come election cycle. I understand that is a difficult posi-
70 

tion, and that is part of the reality, whether it is at the State level 

or the Federal level or the county level. 

But I think the point that you raise and where law enforcement 

can help is to say, no, smart justice here doesn’t mean more statutes. Your Member of Congress is right, we don’t need a new statute, and on behalf of the sheriffs and the local prosecutors, we 

think the laws are on the books, we maybe need funding to enforce 

them, but we don’t need more laws. 

And I think coalitions like the one you see here offer some of that 

help and support for lawmakers when they need those issues addressed and to have people who are experts in that substantive 

field help explain to the constituents why it is important that we 

have the laws on the books we have and not increased to add new 

ones. 

Mr. CONYERS. So we ought to use this phrase a little less often: 

There ought to be a law. 

Mr. SHEPHERD. Agreed. 

Mr. CONYERS. I yield back. 

Mr. SENSENBRENNER. Thank you. 

The gentleman from Alabama, Mr. Bachus. 

Mr. BACHUS. Thank you. 

I have talked to Federal judges, I have talked to State judges, 

I have talked to criminal defense attorneys, and I have actually 

talked to people who have been caught in this dragnet that you describe. And no one defends the status quo. I mean, it is amazing 

how we said we all agree. I can tell you horror stories of things 

that have happened to some of my constituents that you just think 

this can’t be true. 

One of the things is, if you buy a piece of property and there is 

hazardous materials on it. I actually know of a man who bought 

a business, found hazardous materials, and went to the EPA and 

said, this is what I found, but because he didn’t dispose of it in as 

short a time as they wanted, he was charged with maintaining hazardous materials, and he served a prison term because he said, I 

am not going to plead to something I didn’t do. 

And the cost. The cost of disposing. He kept saying, I can’t get 

anybody to tell me who will take this, and they want this much. 

I don’t have the financial ability to dispose of it. He even offered 

the government, I will turn over title to the land to you. 

He is a convicted felon. And I can tell you that that causes disrespect for the law. I mean, the next person is going to say, I am 

not going to look, see what is on the back of this property. It is 

even hard to sell property now if there is any suspicion that there 

might be something. So this stuff is not being disposed of because 

no one will buy it. 

So, intent, I mean, Al Unser. I mean, I know of a public official 

who accepted a pair of shoes from a business that did work with 

the county, a national company, and then she thought, well, I am 

not sure I should have done that. 

So she asked an attorney in her home town and he said, well, 

why don’t you just give them to charity or send them back? So she 

donated them to a charity. She just gave them to them within 3 

weeks, a pair of shoes. Four or 5 years later she was being questioned by grand jury about did she accept any benefits or some-
71 

thing for a certain contract and she said no. Now, she didn’t, but 

she had accepted these shoes. 

So later on she said, you know, we need to tell them about these 

shoes. So she told them. Well, the U.S. Attorney wanted to get a 

plea, so said, I will give you 6 months suspended sentence or we 

will try this case, and offered 3 years. Her attorney said, you know, 

so she pled. Now she has a record. 

Let me move on to another thing and get your comments. I have 

been told by friends of mine, judges and attorneys, that some offenses for drug cases, if you go to the Jefferson County courthouse 

or Shelby County courthouse, in Shelby County it is diverted, you 

go into a diversion program for one offense. Jefferson County you 

will serve maybe—I mean, you will get a year-and-a-day sentence 

max. Probably serve 30 days, 60 days. If it is the same thing and 

you go to Federal court, it can be 10 years. So it just depends on 

where you are arrested. 

And the third thing—and I will let you comment on any of 

these—we aren’t rehabbing people with this foolishness. I mean, 

the end result is things are much worse. You know, somebody 

serves a sentence, they get out, they can’t get a job. We don’t train 

them. They end up back in the system. 

So any comments you all have to say, I mean. But this thing 

about the difference, I mean, and getting 10 years in the Federal 

system and serving 8 or 9, and getting a year in a State court and 

maybe serving 6 months, or getting a diversion program in another 

county. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. BACHUS. Could they respond briefly? 

Mr. SENSENBRENNER. Well, I said at the beginning of the hearing 

that because we are voting, I want to get to the other members of 

the Task Force before the bell rings. 

The gentleman from New York, Mr. Jeffries. 

Mr. JEFFRIES. Thank you, Mr. Chair. And thank you Representative Scott for your tremendous leadership on this issue, and to the 

distinguished panelists that we have here before us. 

Seems to me that there are three issues that we should look to 

tackle as it relates to dealing with the problem of over-criminalization, and I would like to get your thoughts on those three different 

segments. 

The first is just the general problem of too many crimes within 

the Federal code and perhaps those crimes being too punitive in 

nature in terms of the sentencing. That is sort of broad over-criminalization. 

The second problem that you seem to have touched upon is the 

overly broad exercise of prosecutorial discretion. 

And then the third problem seems to be the lack of adequate 

counsel on the back end to make sure that when a citizen finds 

themselves in criminal jeopardy as a result of the first two problems, over-criminalization and overly broad exercise of prosecutorial discretion, there is an opportunity to actually provide an adequate defense consistent with the Sixth Amendment of the United 

States Constitution and the Founders’ intent. 

So if we can start with the first issue, and I will direct this to 

Mr. Shepherd. On the intent issue, there is sort of a sliding scale 
72 

of severity. There is intentional willful intent of course. There is 

reckless disregard, commonly referred to also as depraved indifference in some instances. Then there is criminal negligence. And I 

am interested in getting your comments on when, if ever, is it appropriate to have a criminal negligence intent standard built into 

the law. 

Mr. SHEPHERD. I think that is going to be a rare case where a 

criminal negligence standard is appropriate. I think that is what 

the tort laws are for. That is what the civil court system is for. And 

that it is the rare case where a standard like that is appropriate. 

That is not to say that there aren’t some where it is appropriate. 

And I think that the Ranking Member was trying to flesh that out 

in his question. But I think that is the rare case. I would be glad 

to talk about some of your other issues or come back to that. 

Mr. JEFFRIES. Okay. Let me ask Mr. Benjamin with respect to 

sort overly broad exercise of prosecutorial discretion, what are 

some of the things that we on the Task Force can look at attempt 

to rein that in? 

Mr. BENJAMIN. I don’t know that you can rein in the exercise of 

overly broad prosecutorial discretion. Instead you should recognize 

the powerful force that the prosecutorial function has become in 

our criminal justice system. That will always be the case, I am 

afraid. We have very many excellent prosecutors who will prosecute 

appropriately, but we will always have some who in their zeal 

might be excessive. 

The answer rests with your third point. See, there will always 

being problems within the criminal justice system. There will always be penalties that are too harsh, conduct that shouldn’t be 

criminalized. The safety net is the defense function. We are the 

safety net, the final protector of our citizens who were either unjustly accused or overly accused. And that is why it is so important 

and so vital that we have sufficient resources to do our job. 

Mr. TERWILLIGER. Mr. Jeffries, if I may, maybe we finally found 

something we can have a little bit of disagreement about here 

today. Not Mr. Benjamin’s last point, but his former point. 

I think that the Task Force is very fortunate to have, for example, a former prosecutor with distinguished service such as Mr. 

Holding as a member, because if we look at these series of cases 

that the examples that have been given here, in every one of those 

I think, at least on a prima facie basis, some prosecutor made a 

very bad decision to pursue a case. And I think looking at how and 

why that occurs is a legitimate area of inquiry here. 

And I think the answer, having been both an assistant U.S. attorney and a U.S. attorney myself, is a lack of adequate supervision, of not having supervisors, including United States attorneys, as Mr. Holding did I can tell you from personal experience, 

who is willing to question the judgment of assistants. 

Mr. JEFFRIES. I appreciate that observation. If I could just say 

in my remaining time, Mr. Malcolm, I am encouraged by the diverse ideological group that you at the Heritage Foundation have 

assembled. And one of the things that I would be interested in taking a look at is the notion of the cost to our economy as it relates 

to lost human capital and lost economic productivity. 

Mr. MALCOLM. We could certainly look into that, Congressman. 
73 

Very quickly, if I could just add a quick point on prosecutorial 

discretion, one problem is we are a government of laws and not 

men, and what we should have are clear laws so the prosecutors 

are not left to themselves through regressive interpretations to determine what is legal and illegal. Prosecutors are people of very 

high integrity, but they are not disinterested people in this process. 

They get a lot of kudos for bringing charges and rarely get kudos 

for declining to prosecute. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Idaho, Mr. Labrador. 

Mr. LABRADOR. Thank you, Mr. Chairman. Thank you for convening this hearing. I think this is a very important hearing. I was 

actually a criminal defense attorney, so I am a conservative Republican criminal defense attorney and former immigration lawyer as 

well, which makes me an anomaly in many ways. 

But I just wonder, Mr. Bachus didn’t have an opportunity to 

have you answer the questions. I saw a couple of people raising 

their hands that they wanted to comment on his comments. I don’t 

know if anybody wants to do that. 

Mr. TERWILLIGER. I really did try to address what I wanted to 

say, but thank you for the opportunity in terms of the importance 

of the exercise of prosecutorial discretion in the scheme of things. 

Mr. LABRADOR. And he also raised another issue that I wanted 

to raise as well. We haven’t discussed it here, but as we think 

about over-criminalization, what about the sentencing guidelines? 

Do you think that is something that we should be discussing here 

in this Committee? Do you think this is something that is leading 

to the problems that we are having of so many people being in prison? What are your comments on that? 

Mr. TERWILLIGER. If I may, I lived through the era of indeterminate sentencing where actual sentences were determined by a parole commission behind closed doors, versus the system that we 

graduated to with the guidelines where sentences were determined 

by judges in open court and those were actually the sentences to 

be imposed. Unfortunately, what has happened, I think, with the 

evolution of the jurisprudence on the sentencing guidelines in a 

nutshell is that we are sort of somewhere between those two now. 

We still don’t have a parole commission, but since the guidelines 

are largely just for guidance, the disparity in sentencing has grown 

again. 

In some ways—and I don’t mean this certainly as to any Members here—but Congress has in essence delegated its authority to 

set sentences to the Sentencing Commission. And therefore at least 

as part of legitimate oversight of that operation of government it 

seems to me to be a very legitimate subject matter for this Task 

Force to examine. 

Mr. LABRADOR. Does anybody else have any comments on that? 

Mr. SHEPHERD. Well, I would echo that and add to part of what 

Mr. Bachus was saying, which is that you get different charges and 

different sentences in different parts of your home State. Those are 

driven by the local community’s outrage by particular crimes and 

also, frankly, by their workflow. Larger metropolitan areas often 

have lower sentencing for sort of quote/unquote ‘‘regular,’’ crimes 
74 

because they need to move them through so they can focus on the 

murders and the rapes and the more serious victim crimes. 

But the sentencing guidelines bring some level playing field to 

that and help defendants know and help lawyers advise their clients, here is what is going to happen to you, here is what could 

happen to you in that range. So there is an important role for it. 

But the guidelines, as Mr. Benjamin said, also drive a lot of guilty 

pleas because people know that if I am convicted, I am facing X 

number of years, and the prosecutor has offered me probation or 

offered me something that is going to give me that. So I am not 

going to fight it. And that is where you get administrative codes 

and laws that never really get hashed out in the courts because 

people don’t go to trial. 

Mr. LABRADOR. And that is one of my concerns. I think it was 

actually Justice Scalia who said that we should have more trials, 

not less trials, that you have too many people pleading. And I think 

that is a consequence of having these amazing sentences where you 

go to your client and you tell them, well, your option is to go to 

trial and if we lose you are going to go to prison for 20 years. They 

are always going to choose the option of pleading to something. 

Mr. Benjamin, to you have any comments on that? 

Mr. BENJAMIN. I do. You know, once we prized the fact that we 

lived in a country where we were free of the fear of unjust criminal 

accusation, you know, but we have arrived at the point where we 

have got to, any one of us, fear that the pursuit of happiness might 

be a crime even though we do nothing wrong and have no criminal 

intent. And so that is a problem for us. 

Mr. LABRADOR. To reclaim my time, I am about to run out of 

time. My main concern when it comes to criminal law is many 

times when I was in the State legislature I had a bunch of prosecutors come in and say, well, we need to change the law because it 

is too difficult to prosecute this case. And I always said, good. You 

are taking people’s liberty away. If you are going to take people’s 

liberty away it should be difficult for the State or the Feds to take 

their liberty away. 

Mr. BENJAMIN. It is called the trial penalty. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from California, Ms. Bass. 

Ms. BASS. Thank you very much, Mr. Chairman, Ranking Member, one, for convening this Task Force, and I am very happy to be 

on it. And I am really encouraged by the diversity of the groups 

that have come together around looking at over-criminalization. 

I wanted to know if the panelists—I have three areas I wanted 

to cover rather quickly, and one is I wanted to know if you could 

comment about mandatory minimums and the, frankly, the need 

from my perspective to change them. We had a town hall meeting 

in my district last weekend and I was honored that Representative 

Scott came out, and we had over 200 people there talking about 

their concerns, many families talking about their family members 

that were incarcerated. So that is one issue I wanted you to comment on it. 

And then I wanted your comments around the changing marijuana laws and what your thoughts are. I mean, California 

changed the law. A number of States are. And then we have all of 
75 

these folks that are incarcerated for very petty marijuana crimes. 

And I wanted to know your thoughts on that. 

And I really appreciated Mr. Benjamin talking about how we did 

once have a society that, if you did the time, you paid your debt 

to society, you were then able to be incorporated back. So one of 

the things that has happened in my State, and I imagine it has in 

many other States, is that we have passed all of these laws now 

banning people from working. So we had one case in California 

where in the State prison we had a program to train you to be a 

barber, but then we banned you from having a barbering license. 

So we were able to change that. But I imagine if we had 52 examples of that in California, there probably are examples all around 

the country, and I am hoping that is something this Task Force can 

examine. 

Mr. TERWILLIGER. Ma’am, I will just address your question about 

mandatory minimums. Historically the Congress prescribed the 

penalty in the early days of Federal criminal law and said, if you 

do X, you get Y. And that is its prerogative to so prescribe that 

penalty. So it is within the prerogatives of Congress to prescribe 

mandatory minimum penalties as part of its lawmaking authority. 

I do think mandatory minimums can be effective. They can be effective as deterrents. They can also be effective at removing the 

most dangerous of dangerous people from the street. They can also 

be highly ineffective if applied in circumstances where, frankly, the 

reason for them is far more political than it is substantive in terms 

of actually reducing crime. 

Ms. BASS. Okay. 

Mr. SHEPHERD. The American Bar Association has, as far as I 

am aware, never been in favor of mandatory minimums and has 

spoken against them as an organization. So that is my answer as 

it relates to that. But I would like to answer your question as it 

relates to collateral consequences and reentry issues. 

Many States have the same problem you did in California with 

the barber license and the department of corrections training people for that. The collateral consequences that individual defendants 

face, frankly, I think your researchers who are trying to research 

the number of crimes might also have difficulty researching the 

number of collateral consequences. 

I know that because the American Bar Association, with support 

from the Justice Department and from Congress and other groups 

that have been helping us, has started a project with a Web site 

called the National Inventory of Collateral Consequences, which 

will be a tool that judges, lawyers advising their clients, individual 

defendants, can look up and say, if I plead guilty to this, what are 

all the various business regulatory, housing impacts, student loan 

impacts, all those sorts of things so that they can really make a 

decision that is going to be based on knowing the universe of 

issues. And we have already accomplished quite a bit in that regard and have over half the States, I believe, up on that Web site 

and progress continues. 

Ms. BASS. Thank you. 

Mr. MALCOLM. I would say with respect to mandatory minimums, I would echo what Mr. Terwilliger said. The Congress can 

certainly do them and in appropriate cases they have their place. 
76 

I do think perhaps the pendulum has swung too far and that there 

are too many of them and some of them are too draconian. I would 

say this: In these very, very tough budgetary times, the budgetary 

pie for the Bureau of Prisons is not growing, and all of those dollars being put into prisons is less money for enforcement and other 

social services. So given that fiscal reality, I think it is incredibly 

important that Congress focus on, one, making sure that only the 

right people go to prison, and two, that they are there for the appropriate amount of time and no longer. 

Mr. BENJAMIN. As time expires, I will note that NACDL during 

this past year has held hearings using a Task Force on the Restoration of Rights across the country and we will soon be publishing the results of this very extensive and thorough study. 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. 

The gentleman from Tennessee, Mr. Cohen. 

Mr. COHEN. Thank you, Mr. Chair. I have got a statement to 

enter into the record. 

Mr. SENSENBRENNER. Without objection. 

[The prepared statement of Mr. Cohen follows:] 

Prepared Statement of the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Member, Over-Criminalization 

Task Force of 2013 

Mr. Chairman, I want to thank you for establishing this task force on over-criminalization. It’s a critical issue and one I hope we can find some common ground 

on. 

Short of capital punishment, there is no more serious act this government can 

take than to deprive someone of their liberty. It’s something we should do in only 

the most serious and limited of circumstances, and after the greatest care and due 

process. Unfortunately, the criminal code has grown into a behemoth and our prisons are swelled with people who pose no danger to society. 

There are some obvious questions we should look at—whether we have too many 

crimes, whether the mens rea required for them is appropriate, and whether the 

sentences are proportionate. In particular, I hope we’ll look at mandatory minimums 

and the damage they have caused. Mr. Scott has important legislation to provide 

judges with safety valves to reduce these sentences where appropriate and I hope 

we’ll look at that. 

I would note that the proposed agenda for our Task Force includes a special emphasis on regulatory crimes. While it’s a topic worthy of exploring, I hope that we 

won’t turn this into a larger discussion on the value of regulation and the regulatory 

state—I get more than my share of that in the Regulatory Reform, Commercial and 

Antitrust Law Subcommittee and our attention would be better served on other the 

topics I described. 

But in the months ahead, I hope we’ll also take a more expansive look at the 

problem of over-criminalization. I especially hope we’ll take a look at our federal 

drug policy, particularly with respect to marijuana, which is really a microcosm of 

the whole problem. We’ve taken an activity with no victim and minimal risks—certainly far fewer risks than with alcohol—and made it into a crime. In the process, 

we’ve made criminals out of millions of people with no increase in public safety. 

Fortunately, the American public is changing their attitudes towards marijuana 

and a recent Pew Research poll found that 52% of people support legalization. 

They’re waking up to the fact that 40 years of the War on Drugs has proven to be 

a failure. Not only are we throwing away the lives of millions of people, but we’re 

also wasting precious resources through our vast prison industrial complex. 

With sequestration in effect and a difficult budget environment, it’s a good time 

for us to look at the fiscal and economic impact of our criminal policies. We also 

have to consider how criminal laws have been enforced, and the staggering racial 

disparities that have resulted. Just last week, the ACLU issued an alarming report 

on the racial disparities in marijuana arrests and found that Blacks were nearly 

four times more likely to be arrested than Whites. In Shelby County, Tennessee, 

which I represent, 83.2% of people arrested for marijuana possession were Black, 
77 

far higher than their percentage of the population at large. These statistics argue 

for a deep examination of how our criminal laws are enforced. 

In addition, no discussion of the criminal code is complete without considering the 

consequences of conviction for those crimes. In our society, even a conviction for a 

minor, non-violent offense can effectively be a life sentence because the stigma of 

your conviction will follow you around for the rest of your life. In the case of marijuana, you practically have a scarlet M pasted across your chest. Employment, education, and housing opportunities—the very things necessary to start fresh—can all 

be denied on the basis of a conviction. Not only is this cruel, but it’s self-defeating. 

We should consider expungement laws and other measures to mitigate these consequences and give people a second chance. 

Finally, I hope we can consider the President’s pardon power and the issue of executive clemency. While this is an executive function, we should be working with 

the Department of Justice to facilitate the review of candidates worthy of compassionate release. 

I recognize that many of the issues I’ve discussed this morning, like drug policy, 

primarily occur at the state and local level but there is much we can do at the federal level. For one thing, we can and should serve as a model for the states. 

We also need to determine whether our funding policies are inadvertently encouraging over-criminalization. For example, I have heard many concerns that the 

Byrne/JAG program encourages states and localities to arrest people for low-level 

offenses so that their statistics will increase and they will, in turn, earn more federal funding so that the cycle can continue. I hope we can look at this issue as well. 

As you can see, this Task Force can remain very busy if we address all the issues 

before us. But if we do our job right, we have the opportunity to create a more just 

society and I look forward to the work we will produce. 

Mr. COHEN. Thank you. 

I want to follow up on Ms. Bass’ questions concerning marijuana. 

I think that is one of the biggest problems this country has. And 

the problem is not marijuana; it is the enforcement of the marijuana laws and the number of people who have been incarcerated. 

That is the biggest problem. 

Has the Bar Association, Mr. Shepherd taken a position? I 

thought they might have on medical marijuana, but has it taken 

any position on incarceration for possession of marijuana? 

Mr. SHEPHERD. Sir, I don’t know the specific answer to your 

question about possession charges and prison time for—— 

Mr. COHEN. How about medical marijuana? 

Mr. SHEPHERD. I know that there is a matter before the House 

of Delegates that will be addressed in August that deals with some 

of those issues. 

Mr. COHEN. Do you of any position they have taken in the past 

where they have said that medical marijuana laws should be approved? 

Mr. SHEPHERD. I personally don’t. 

Mr. COHEN. Over at some cocktail party where people were juggling some alcohol, they didn’t talk about that sometime? 

Mr. SHEPHERD. Perhaps I wasn’t invited to that event. 

Mr. COHEN. Mr. Benjamin, what are your thoughts on that 

issue? 

Mr. BENJAMIN. I have just been advised that we in fact oppose 

the criminalization of personal use of marijuana and certainly the 

medical treatment that uses marijuana. We oppose the criminalization of the use of marijuana. That is correct. 

Mr. COHEN. But wouldn’t that take business away from you? 

Wouldn’t you lose clients? What a noble thing. That is unique. 
78 

Mr. BENJAMIN. We are just that noble in fact. It is true, it is 

true. What we want is a just and fair criminal justice system over 

everything else. There will always be work for us. Never fear. 

Mr. COHEN. I value being on this commission because I think it 

is so important. I think other than the death penalty, there is nothing more serious the Federal Government could do than take somebody’s liberty. And it should be, in my opinion—and I am far from 

a member of the tea party—but it seems like the tea party should 

grasp this issue, because it is taking liberty and individual rights 

and it is using Federal resources financially in the hundreds of millions of dollars to incarcerate, to prosecute, and then later to lose 

the productivity of those people because they can’t get jobs, they 

can’t public housing, they can’t get scholarships, et cetera. This is 

a tea party issue; they just haven’t picked up on it yet. They need 

to smell the tea. 

Mr. SENSENBRENNER. Will the gentleman yield? 

Mr. COHEN. If I doesn’t reduce my time, yes, sir. 

Mr. SENSENBRENNER. I will ask unanimous consent that his previous comments about the tea party be expunged from the record 

so he will have more credibility when he goes and approaches them 

on the subject. 

Mr. COHEN. Whatever. 

The concern I have got—I am happy to be on the Committee, but 

I read that the Brown Commission got nowhere and they did so 

much work in the 1960’s. My belief—and without taking on my 

President too much—is that the main way that we can deal with 

this is through pardons, by the pardon power of the President, 

which he has not used. There is still an 18-1 disparity in crack and 

cocaine punishments. It used to be a 100-1. 

Mr. Benjamin, do you think the President would be correct in 

using his power to, not necessarily pardon, but commute the sentences of those people who were sentenced to jail in Federal prison 

and are still in Federal prison for serving at somewhere between 

18 and 100 ratios, where if they had had the laws that Congress 

has passed and therefore they become what we believe is correct 

and right public policy, that he will be using his power correctly 

to get those folks out of the Federal system? 

Mr. BENJAMIN. Well, that certainly makes sense to me. But I 

have got to note that the exercise of the pardon power is also an 

exercise of a political function and hence it is not something that 

we can should rely upon to correct injustices and imbalances within 

our criminal justice system. 

Mr. COHEN. I agree with you, but if I was one of those people 

in jail I wouldn’t worry about that and I wouldn’t wait for us to 

pass the laws to change it. The President can do it now. And there 

are so many other laws, unjust sentences that he could take care 

of by commuting sentences, and he needs to do it. There are people 

rotting away in jail and causing us a lot of expense that don’t need 

to be there, and that is it just needless. 

As far as mandatory minimums, I think Mr. Terwilliger said he 

liked them. Sometimes it is a deterrent. Do you think if there is 

a mandatory minimum for drug sales, that you take one person 

and put them in jail, that there is not another person, like a 

shark’s tooth right there to take over? After 40, 50 years of the 
79 

drug war, we haven’t seen any reduction in people dealing because 

the other dealer was put in prison. 

Mr. TERWILLIGER. I wasn’t—at least in terms of what I think, 

what I personally think, Mr. Cohen, would be the appropriate use 

of mandatory minimums—thinking of drug offenses. I was thinking 

of violent offenders, people who have shown a propensity to commit 

violence over and over again. 

Mr. COHEN. Thank you, sir. 

And thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Before closing the hearing, during my opening statement I did 

make a comment about the Congressional Research Service being 

overworked and not having enough staff to tell us what criminal 

laws are on the books. And we are not going to take that kind of 

‘‘no’’ for an answer. 

The Task Force staff will be meeting with CRS next week and 

also outside experts to see if there is a path forward in this important endeavor so at least we know the extent of the criminal law, 

whether it is in the 51 titles of the U.S. Code or whether it is somewhere buried in the Code of Federal Regulations. We are not going 

to be able to do a complete job in this task without having this information, and we are going to get the information, no matter how 

long it takes. 

So with that happy note, without objection, the Committee 

stands adjourned. 

[Whereupon, at 10:25 a.m., the Task Force was adjourned.] 

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